It's Not Me, It's You - When Losing Isn't Your Attorney's Fault

As always, please review my disclaimer before reading this post by following the link above, or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

It's amazing to me how many times I hear from people who have just lost in court coming to me looking to hire a new attorney because they are convinced the reason they lost is their old attorney.  As I delve into my consultation, however, facts begin to come out in the discussion that make one thing clear - the loss had nothing to do with the quality of the prior attorney.  Sometimes my response is "It sounds to me like the judge just got it wrong, so let me help you try to fix it."  Sometimes potential clients are shocked (and proceed not to retain me) when I respond "I hate to say it, but I think the judge made the right decision, and I don't think having another attorney would have helped."  I can count on one hand the number of times I have actually agreed that the prior attorney did a bad job.

There's an old saying in law that the quality of your attorney makes the difference between "winning" and "losing" a case (I use quotes because winning and losing in the legal context is not always clear-cut) in somewhere around 5% of cases.  I tend to agree with that statistic if you add the caveat that having an attorney at all versus not having one makes the difference in somewhere closer to 20% of cases (note that this is still a minority).  So, why do I still say having an attorney, and not just any attorney but a good attorney, is so important?  For that, you will need to read on.

Was Your Loss Really Your Attorney's Fault?

When you are living your case, it is often hard to consider the possibility that you are wrong.  Maybe you are morally right, but legally wrong.  If you got your leg crushed by a fallen piano and had to have it amputated because it took too long to get the piano off your leg, you can't sue the people who just stood around laughing at you instead of helping.  No matter how wrong what they did was morally speaking, there is no legal duty to help you - as long as they didn't cause the piano to fall in the first place, they're not liable, and no attorney is going to change that.

Now, usually things aren't as obvious, but at least over time, you should be able to get a hint.  Remembering that all cases are different so the facts of any given case may not apply to yours, I am aware of a child custody case in which the non-custodial parent has filed suit to take custody away at least four times in the past five years.  He has lost every time, and every time a new suit is filed within a couple months with a new attorney.  At some point, he might want to start asking if it's really his attorneys, or if it's him, that's losing his case.

Ultimately, the thing to remember is exactly what I say in the introduction.  The quality of the attorney makes a difference in trial results about 5% of the time.  That means that if you lost, there's a 95% chance that a better attorney wouldn't have done any better for you.

Why Having a Good Attorney Still Matters

So if it's so rare for the quality of an attorney to affect the outcome of a trial, why do you still need a good one?  Or why do you need one at all?

Well, let's say you get sued for $50,000, and I told you that with attorney A you'll come away paying $45,000 while with attorney B you'll come away paying $100,000.  Wouldn't you choose attorney A?

You see, in the scenario I outline above, attorney A is the better attorney.  This is the one to whom you come to your consultation, you explain why you don't think you're liable, he reviews your case, tells you why you are liable, then helps you settle for $40,000, racking up only $5,000 in legal fees in the meantime.  Attorney B tells you what you want to hear, tries to find a way to defend your suit, racks up $50,000 in legal fees preparing for trial, and loses.

My point is that the most valuable tool a good attorney brings to the table is knowing when your case is weak.  A good attorney will know that you have a losing case, will explain to you why you have a losing case, and instead of wasting billable hours preparing for a worthless trial, will help you settle the case as quickly as possible so you can move on with your life.

Understand that in my scenario here, both attorneys would lose if the case went to trial.  The difference is, the better one will help you avoid trial to begin with.

How to Maximize Your Attorney's Effectiveness

So, with that covered, the next question might be what you can do to help your attorney represent you to the best of his ability.  The simple answer to this is listen.  Your case is yours, and all decisions are ultimately yours, but if your attorney tells you that you have a losing case, you may want to consider that your attorney may be right.  Certainly you should feel free to get a second opinion, or if you've heard from friends, colleagues or other attorneys about ways that you have a good case, mention those ways.  I know I have had clients bring up to me arguments they thought were winning only to have me explain why these did not apply to their case.  This left the client much more satisfied than sitting there just wondering why I wasn't looking at going this other route.

The second way to maximize your attorney's effective is to ask.  I am at my best when my clients have almost as good an understanding of the law and legal issues of their case as I do.  Since an attorney will never know the facts as well as the client does, and the client will never know the law as well as the attorney does, each person asking the other questions whenever they come up helps maximize knowledge.  If you, as a client, know the law almost as well as I do, you might suddenly realize that a fact you never thought was important before actually is important, then you'll mention it to me, and now my ability to represent you has been improved.  I've never known an attorney unwilling to answer client's questions about the law and the way it works in their case - any time you have a question, just ask.

Conclusion

Losing is hard for anyone, but when you believed yourself to be right, it is even harder.  Often the easiest target for blame for a loss in court is the quality of your attorney, but you need to remember that this is rarely the actual cause of a loss.  A good attorney is not necessarily one who will make the difference between winning and losing in court, but between maximizing your gains or minimizing your losses outside of court.  The most valuable things you, as a client, can do to ensure that your attorney is as effective as possible is to listen to what your attorney has to say about your case, and to ask your attorney whatever questions you may have.  If you have a case that you have lost but would like to appeal or take another crack at, or if you'd like a second opinion on something another attorney has told you, please feel free to e-mail sleven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation with me.  Our initial consultations are free for up to half an hour!